Legality and Discretion in the Distribution of Criminal Sanctions

Abstract:     
The judicial system now responds to criminal conduct in two rather divergent steps. A judge or jury first determines if a defendant should be held liable for a criminal offense. If so, then the judge or jury goes on to choose a penalty. Precise rules, designed to ensure fairness and predictability, govern the first stage, liability assignment. In the second stage, sentencing, however, judges and juries exercise broad discretion in meting out sanctions.

In this Article, Professor Robinson argues that both liability assignment and sentencing are part of a single process of punishing criminal behavior and should be made more uniform. Decisionmakers would receive greater discretion when they assign liability and more guidance when they prescribe sanctions. Criminal codes, he contends, should explicitly give judges and juries the flexibility to incorporate normative judgments into their decisions on liability. Sentencing guidelines, however, should be more detailed and precise. Professor Robinson offers several strategies to address the practical difficulties of drafting sentencing guidelines that firmly direct judges and juries in dealing with complex issues, and he illustrates how criminal codes could give decisionmakers more discretion in certain circumstances.

Number of Pages in PDF File: 69

Keywords: Criminal liability, sentencing, sanctions, punishment, criminal code

JEL Classification: K14

Accepted Paper Series